If you were the judge: Did the company do enough to stop customer harassment?

Based on the facts presented in the scenario below, how do you think the court ruled on this employment law case?

THE CASE

Service specialist Clarisse Jones was loaded for bear as she barged into supervisor Audra McNichols’s office.

“Our creepy customer is at it again,” Clarisse fumed. “He was sitting in the waiting room, and as I passed by he pulled me onto his lap. I can’t work in these conditions. What are you going to do about that pervert?”

What they did
Audra sighed. “I thought we had taken care of the problem. We decided that you wouldn’t ever have to serve him by yourself,” she said. “We gave you permission to go get a co-worker if you were ever alone when he came in. And I personally asked him to mind his manners.”

“I know,” Clarisse said, calming down a little. “I hoped that would do the trick. But today he ambushed me before I could go get Marilyn to come out of the back office.”

Affecting her work
“Something else has got to be done,” Clarisse said. “This situation is affecting my ability to do my job.”

“I don’t know what else we can do,” Audra said. “I can’t bar him from the premises — he’s one of our biggest customers. If I could, I’d transfer you to another service center, but I don’t think there are any openings right now.”

Eventually, Clarisse quit, claiming the customer was making her life at work intolerable. And she sued the company for tolerating a sexually hostile work environment.

Yes, Clarisse got a federal appeals court to agree that her case was strong enough to go to trial. That was a blow for Audra’s company, which now has to face a jury or settle with Clarisse out of court.

The problem wasn’t that Audra did nothing to protect Clarisse from the harassing customer. It was that she apparently didn’t do enough. When Clarisse told her that the customer had continued to bother her despite the safeguards that had been put in place, Audra should have made it a priority to find other ways of stopping him from engaging in harassment.

Harassment of an employee by an outside party like a delivery person, vendor, or customer is a tough situation for a supervisor to deal with, because business relationships may be at risk. Best bet: Involve HR and/or upper management. They’re well placed to balance the business considerations and the employee’s right to be free of harassment.

I have been practicing law in Philadelphia for over 35 years, focusing on employment law. I have tried employment cases, including harassment cases, to juries on behalf of both employees and employers. Characterizing what happened in this case as a win for the employee is somewhat misleading. It is, at most, an interim win, keeping the employee’s case alive to the next step in the process. All the Tenth Circuit (which sits in New Orleans) really held was that the employee’s allegations were sufficient so that if believed by a jury the jury could reasonably conclude that the employer is liable under federal anti-discrimination law. The Tenth Circuit made no ruling about the merits of the employee’s claim and whether the allegations should be believed.

These are extremely fact-sensitive caases. Obviously, the risks of litigation might motivate the employer to bite the bullet and reluctantly reach a compromise settlement. However, if the employer exercises its right to go forward to trial, Plaintiff will still bear the burden of proof to convince the jury that the employer failed to take reasonable steps to protect Clarisse from the obnoxious customer. What are reasonable steps? That determination will be left totally to the wisdom of the ordinary folks sitting on the jury.

I learned long ago in my career that it is a thankless exercise trying to predict jury outcomes. Nonetheless, were this case to be tried to the average federal jury sitting in Philadelphia, and were the evidence to come across exactly as is written above, my money would be on a verdict for employer.

Employer is not strictly liable for the customer’s misbehavior – only for its own failure to take reasonable steps to protect the employee from the misbehavior. The employer did not take the ultimate step of severing business ties with the customer, but I don’t think the jury would expect the employer to go that far. The employer also seems to have given up trying to protect the employee a little too early in the game, which I think represents the weakest aspect of the employer’s defense. On the other hand, unless the jury conclues that the employer gave up completely, was willing to do nothing more, and was leaving the employee out on a limb on her own, my guess is that a typical jury finds the employer’s proactive efforts sufficient to meet the test of a reasonable effort.

I have been practicing law in Philadelphia for over 35 years, focusing on employment law. I have tried employment cases, including harassment cases, to juries on behalf of both employees and employers. Characterizing what happened in this case as a win for the employee is somewhat misleading. It is, at most, an interim win, keeping the employee’s case alive to the next step in the process. All the Tenth Circuit (which sits in New Orleans) really held was that the employee’s allegations were sufficient so that if believed by a jury the jury could reasonably conclude that the employer is liable under federal anti-discrimination law. The Tenth Circuit made no ruling about the merits of the employee’s claim and whether the allegations should be believed.

These are extremely fact-sensitive caases. Obviously, the risks of litigation might motivate the employer to bite the bullet and reluctantly reach a compromise settlement. However, if the employer exercises its right to go forward to trial, Plaintiff will still bear the burden of proof to convince the jury that the employer failed to take reasonable steps to protect Clarisse from the obnoxious customer. What are reasonable steps? That determination will be left totally to the wisdom of the ordinary folks sitting on the jury.

I learned long ago in my career that it is a thankless exercise trying to predict jury outcomes. Nonetheless, were this case to be tried to the average federal jury sitting in Philadelphia, and were the evidence to come across exactly as is written above, my money would be on a verdict for employer.

Employer is not strictly liable for the customer’s misbehavior – only for its own failure to take reasonable steps to protect the employee from the misbehavior. The employer did not take the ultimate step of severing business ties with the customer, but I don’t think the jury would expect the employer to go that far. The employer also seems to have given up trying to protect the employee a little too early in the game, which I think represents the weakest aspect of the employer’s defense. On the other hand, unless the jury conclues that the employer gave up completely, was willing to do nothing more, and was leaving the employee out on a limb on her own, my guess is that a typical jury finds the employer’s proactive efforts sufficient to meet the test of a reasonable effort.

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